Plea Bargaining in Criminal Cases

If every criminal case went to trial, the criminal justice system would effectively shut down. The answer developed to address this problem is the plea bargain.

A “plea bargain” is an agreement between the prosecutor, the defendant’s attorney and the defendant. In return for the defendant entering a plea of guilty to a criminal charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial. The prosecution is relieved of the burden of proving the case beyond a reasonable doubt at trial and the defendant receives a specific resolution of the charges against him.

The volume of cases in the criminal justice system and the limited resources to prosecute cases in court have lead to a growing use of plea bargains to resolve criminal cases.  In 2011, 97% of federal criminal cases were resolved by plea bargains.

In 2012, the United States Supreme Court recognized the critical role of plea bargains in the criminal justice system and expanded the right to effective assistance of counsel in the context of  plea bargaining.[1]

Types of Plea Bargains

A plea agreement can take several forms. There are the “charge bargain”, the “sentence bargain” and the “fact bargain”. A plea agreement often contains elements of all three.  Both felony and misdemeanor cases can be the subject of plea bargaining.

Charge Bargain

In a charge bargain, the prosecutor offers to amend the crimes that a defendant has been charged with to a lesser offense that carries a lesser penalty. An individual charged with burglary, a felony, may be offered a chance to plead guilty to criminal trespass, which is a misdemeanor.

Alternatively, in return for a guilty plea to a specific charge such as driving under the influence, other charges arising out of the same event, perhaps minor traffic tickets like speeding or improper lane usage or other charges such as driving on a suspended license might be dropped or the penalties included in resolution of a more serious charge.

Charge bargains can be used to avoid mandatory minimum penalties if a charge is changed to one that does not have the same minimums, but the facts fit the alternate charge. The authority to alter charges is within the complete discretion of the prosecutor.

Sentence Bargain

In this instance, the prosecutor agrees to make a specific recommendation to the judge of a sentence in return for a guilty plea. Most charges carry a wide range of sentence possibilities. Given the range of possible outcomes, many defendants prefer the certainty of a specific sentence rather than the uncertainty of a sentence following a guilty verdict at trial.

Following a trial the sentence is entirely at the discretion of the judge and the judge may impose the maximum sentence allowable by law.

Even when there is an agreement between the prosecution and defense sentence bargains must be approved by the trial judge. In most jurisdictions, if the judge does not approve of the agreement, the defendant is allowed to withdraw his guilty plea.

In some jurisdictions, such as Illinois, provisions exist for judges to participate in plea discussions. Where this is available the parties have absolute certainty of the outcome of a guilty plea as there has been preapproval by the judge.  In other jurisdictions, such as federal court, judges are prohibited from being a party to plea discussions.

Fact Bargaining

This is seldom used and often happens in minor cases that may expose a defendant to civil liability to a crime victim. Fact bargaining involves an stipulation to certain facts or the introduction to certain evidence, thereby eliminating the need for the prosecutor to have to prove them, in return for an agreement not to introduce other facts into evidence. The defendant may then technically maintain a plea of not guilty, though it is understood he will be found guilty.

A guilty plea is an admission that may be used against a defendant in another court proceeding as to liability for specific acts. A finding of guilty after a trial is not such an admission. The fact bargaining process achieves a conviction for the prosecution without a full trial, and avoids a court admission for the defendant. In some jurisdictions this same result is achieved by a plea of no contest.

Elements of a Valid Plea Agreement

The defendant remains cloaked with his constitutional rights up until his guilty plea is entered. For an agreement to be valid, the following elements must be present:

  • A voluntary waiver of constitutional rights[2]
  • A knowing waiver of these rights
  • A factual basis for the charges to which the defendant is pleading

A judge accepting a plea must investigate on the record that these elements exist.

[1] When drafted most constitutional protections were aimed at the trial process, and most have been interpreted with considerations of trial in mind.  In MISSOURI v. FRYE and LAFLER v. COOPER  the Court recognized the critical role plea bargains play.  In Frye, the defendant’s lawyer had failed to convey an offer of a reduced charge and 90 day sentence and defendant was sentenced to three years.  In Cooper, defendant rejected an offer of 51 to 85 months based on improper advice from his lawyer, went to trial and was sentenced to 185 to 360 months. These cases point out the crucial role of plea bargaining.

[2] Plea bargaining requires defendants to waive multiple rights protected by the Fifth and Sixth Amendments of the Bill of Rights: among the rights a defendant gives up: the right to a jury trial, the right against self-incrimination, and the right to confront hostile witnesses. Among the rights not given up are the right to effective assistance of counsel.  See FN 1..


For Further Reading



  1. […] the Defendant agrees to plead guilty it is by way of an agreement between the prosecutor, the defense lawyer and the defendant. […]

  2. […] maximum penalties for each class of misdemeanor, upon a finding of guilty after a trial or after a plea of guilty, the judge has a range of sentencing options. These […]

  3. […] guilty plea or nolo contendere often is the result of a plea bargain with the state attorney making a sentence recommendation to the […]

  4. […] person accused of a crime is presumed innocent until found guilty at a trial or pleads guilty in open court. It is difficult to prepare a defense and consult with counsel while in […]